1. Definitions
1.1 “BCA” shall mean BCA Enterprises Pty Ltd T/A BCA Fabrications its successors and assigns or any person acting on behalf of and with the authority of BCA Enterprises Pty Ltd T/A BCA Fabrications.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation
or other form as provided by BCA to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by BCA to the Customer (and where the context so permits shall include any supply of Services and/or Equipment as hereinafter defined) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by BCA to the Customer.
1.5 “Services” shall mean all Services supplied by BCA to the Customer andincludes any advice or recommendations (and where the context so permits shallinclude any supply of Goods and/or Equipment).
1.6 “Equipment” shall mean Equipment supplied on hire by BCA to the Customer(and where the context so permits shall include any supply of Goods and/orServices as defined above) and is as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by BCA to the Customer.
1.7 “Price” shall mean the price payable for the Goods as agreed between BCA and the Customer in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading
Acts (“FTA”) and application of these terms and conditions to consumers
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories
of Australia, except to the extent permitted by those Acts where applicable.
2.2 Clause 8 (Defects) and clause 9 (Warranty) may NOT apply to the Customer where the Customer is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Customer is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
3. Acceptance
3.1 Any instructions received by BCA from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by BCA shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of BCA.
3.4 The Customer shall give BCA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile
number, or business practice). The Customer shall be liable for any loss incurred by BCA as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by BCA only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override
these terms and conditions of trade.
4. Price And Payment
4.1 At BCA’s sole discretion the Price shall be either: (a) as indicated on invoices provided by BCA to the Customer in respect of Goods supplied; or
(b) BCA’s quoted Price (subject to clause 4.2) which shall be binding upon BCA provided that the Customer shall accept BCA’s quotation in writing within thirty (30) days.
4.2 BCA reserves the right to change the Price in the event of a variation to BCA’s quotation. Any variation from the plan, design or specifications, or as a result of increases to BCA in the cost of materials and labour, will be charged for on the basis of BCA’s quotation and will be shown as variations on the invoice.
4.3 At BCA’s sole discretion a non-refundable deposit may be required.
4.4 At BCA’s sole discretion
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be made by instalments in accordance with BCA’s payment schedule; or
(d) payment for approved Customers shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
4.5 Where no payment schedule has been specified, BCA may submit a detailed payment claim at intervals not less than one (1) month for work performed up tothe end of each month. The value of work so performed shall include the reasonable value of authorised variations and the value of materials delivered to the site but not yet installed.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty
(30) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and BCA.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 At BCA’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at BCA’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by BCA or BCA’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
5.2 At BCA’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then BCA shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 BCA may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The failure of BCA to deliver shall not entitle either party to treat this contract as repudiated.
5.7 BCA shall not be liable for any loss or damage whatsoever due to failure by BCA to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of BCA.
6. Risk
6.1 If BCA retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 Where the Customer expressly requests BCA to leave Goods outside BCA’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
6.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, BCA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BCA is sufficient evidence of BCA’s rights to receive the insurance proceeds without the need for any person dealing with BCA to make further enquiries.
7. Title
7.1 BCA and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid BCA all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to BCA in
respect of all contracts between BCA and the Customer.
7.2 Receipt by BCA of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then BCA’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until BCA shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from BCA to the Customer BCA may give notice in writing to the Customer to return the Goods or any of them to BCA. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) BCA shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to BCA then BCA or BCA’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as BCA has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to BCA for the Goods, on trust for BCA; and
(f) the Customer shall not deal with the money of BCA in any way which may be adverse to BCA; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of BCA; and
(h) BCA can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that BCA will be the owner of the end products.
8. Defects
8.1 The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify BCA of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford BCA an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which BCA has agreed in writing that the Customer is entitled to reject, BCA’s liability is limited to either (at BCA’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
9. Warranty
9.1 Subject to the conditions of warranty set out in clause 9.2 BCA warrants that if any defect in any workmanship of BCA becomes apparent and is reported to BCA within twelve (12) months of the date of delivery (time being of the essence) then BCA will either (at BCA’s sole discretion) replace or remedy the workmanship.
9.2 The conditions applicable to the warranty given by clause 9.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by BCA; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user;or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and BCA shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without BCA’s consent.
(c) in respect of all claims BCA shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
9.3 For Goods not manufactured by BCA, the warranty shall be the current warranty provided by the manufacturer of the Goods. BCA shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10. Intellectual Property
10.1 Where BCA has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in BCA, and shall only be used by the Customer at BCA’s discretion.
10.2 The Customer warrants that all designs or instructions to BCA will not cause BCA to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify BCA against any action taken by a third party against BCA in respect of any such infringement.
10.3 The Customer hereby authorises BCA to utilise images of the Goods designed or drawn by BCA in advertising, marketing, or competition material by BCA.
11. Equipment Hire
11.1 The Equipment shall at all times remain the property of BCA and is returnable on demand by BCA. In the event that the Equipment is not returned to BCA in the condition in which it was delivered BCA retains the right to charge the Price of repair or replacement of the Equipment.
11.2 The Customer shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner
11.interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by BCA to the Customer.
11.3 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, BCA’s interest in the Equipment and agrees to indemnify BCA against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at BCA’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by BCA.
12.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify BCA from and against all costs and disbursements incurred by BCA in pursuing the debt including legal costs on a solicitor and own client basis and BCA’s collection agency costs.
12.4 Without prejudice to any other remedies BCA may have, if at any time the Customer is in breach of any obligation (including those relating to payment),
BCA may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. BCA will not be liable to the Customer for any loss or damage the Customer suffers because BCA has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to BCA’s other remedies at law BCA shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to BCA shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to BCA becomes overdue, or in BCA’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which BCA may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to BCA or BCA’s nominee
to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that BCA (or BCA’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should BCA elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify BCA from and against all BCA’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint BCA or BCA’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14. Cancellation
14.1 BCA may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice BCA shall repay to the Customer any sums paid in respect of the Price. BCA shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by BCA (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Customer’s specifications or nonstocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s agree for BCA to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by BCA.
15.2 The Customer and/or the Guarantor/s agree that BCA may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s. 15.3 The Customer consents to BCA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by BCA for the following purposes and for other purposes as shall be agreed between the Customer and BCA or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by BCA, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
15.5 BCA may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16. Unpaid Seller’s Rights
16.1 Where the Customer has left any item with BCA for repair, modification, exchange or for BCA to perform any other Service in relation to the item and BCA has not received or been tendered the whole of the Price, or the payment has been dishonoured, BCA shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while BCA is in possession of the item;
(c) a right to sell the item. 16.2 The lien of BCA shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
17. General
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
17.3 BCA shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by BCA of these terms and conditions.
17.4 In the event of any breach of this contract by BCA the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by BCA nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 BCA may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.7 The Customer agrees that BCA may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which BCA notifies the Customer of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the
reasonable control of either party.
17.9 The failure by BCA to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BCA’s right to subsequently enforce that provision.
